Background Check Forms: Ensure Yours Are Compliant

Background Screening Lawsuit

Class action lawsuits can cost employers a pretty penny. An example of this is a recent settlement by Publix supermarket for $6.8 million because release language was included in the company’s background check disclosure form, which violates the Fair Credit Reporting Act (FCRA).

A recent piece in the Employment Class Action Blog by Todd Lebowtiz of Baker & Hostetler, LLP, begins simply with, “If your company’s background check disclosure form includes a release of liability, take it out.”

The blog goes on to share the following information:

“The Federal Trade Commission (which enforced the FCRA until recently) had previously opined that it is permissible to include, on the disclosure form, “minor additional items” that do not distract from the nature of the form.  Examples of additional items that can be added to the form include a place for the applicant to write identifying information or the inclusion of a notice that the background check may include information obtained through interviews with individuals (i.e., an investigative consumer report).  The FTC’s primary concerns were that the disclosure not be diminished in importance by the inclusion of unrelated information and that the disclosure not be buried in small text at the end of an employment application, where it could be missed by an applicant. 

“At least two district courts have recently ruled that release language is not the kind of “minor additional item” that an employer is permitted to include on the disclosure form.  Although the Publix case settled before the court entered a ruling on the merits, employers should heed the warning sounded by this settlement and take steps to ensure that their disclosure forms do not include release language.”

Corporate Screening has been reporting about the increase in FCRA class action lawsuits in our newsletter, on webinars and in blogs. These cases are expensive to fight, and expensive to settle. Employers, make sure all of your forms and procedures are current and meet FCRA guidelines. And if you have questions, we can help.

St. Louis “Bans the Box”

St Louis Ban the Box

On October 14, 2014, St. Louis Mayor Francis Slay announced that the city will no longer require city job applicants to disclose felony convictions, according to the St. Louis Post-Dispatch. The city has removed the check box asking about criminal history from its job applications.

The mayor noted that the city will continue to do background checks for jobs that legally require them, such as police or airport employment, and screening will be done on a case-by-case basis as necessary.

St. Louis becomes one of a growing number of states and municipalities that have “banned the box” on job applications. This action serves as a reminder to employers that they should regularly review their hiring practices and forms. And if necessary, make changes in order to comply with all applicable laws, local, state and federal.

FTC Obtains Restraining Order Against Diploma Mill

Background check Diploma Mill

The Federal Trade Commission (FTC) announced that at its request, a Florida court put a temporary restraining order to halt the business of an online high school diploma mill. Diversified Educational Resources, LLC (DER) and Motivational Management and Development Services, Ltd. (MMDS) allegedly grossed over $11 million by selling fake high school diplomas.

The FTC’s press release stated that since 2006, the companies sold diplomas online, “using multiple names, including “Jefferson High School Online” and “Enterprise High School Online.” Their websites claimed that by enrolling in the defendants’ programs, consumers could obtain “official” and accredited high school diplomas and use them to enroll in college, join the military, and apply for jobs. The defendants charged students between $200 and $300 for a diploma, and a preliminary review of bank records suggests that defendants have taken in more than $11,117,800 since January 2009.”

According to the complaint, “the defendants violated the FTC Act by misrepresenting that the diplomas were valid high school equivalency credentials and that the online schools were accredited. The FTC says the defendants actually fabricated an accrediting body to give legitimacy to the diploma mill operation.”

Corporate Screening’s education verification service identifies diploma mills and phony accrediting agencies that are not recognized by the U.S. Department of Education. For more information about diploma mills, we invite you to check out the article, “High School Diploma Mills” featured in a previous edition of our newsletter, Screening Solutions.

 

Washington D.C. “Bans the Box” – Private Employers Affected

US White House

Washington D.C. is the most recent city to join the “ban the box” movement, and the city has passed “one of the most stringent ban-the-box laws in the nation,” according to a blog by Baker & Hostetler’s Todd Lebowitz. The “ban the box” regulation affects employers (both public and private) who have at least 10 employees in the District of Columbia, and “covers background checks that are performed not only before employment, but also before retention as an independent contractor or as an unpaid intern.”

Titled the Fair Criminal Records Screening Act, the law was signed by the mayor and has to go to Congress for approval before it takes effect.

The blog provides details about the new law. Highlights include:

  • Employers cannot ask about prior criminal convictions until after a conditional offer of employment has been made. And they may also never ask about arrests or criminal accusations that are not pending or did not result in a conviction.
  • Conditional offers may only be withdrawn if there is a “legitimate business reason.”
  • Within 30 days of adverse action, applicants who think employment was denied due to a criminal conviction can ask for all records that were considered by the employer in making the decision, and they may file a complaint with the Office of Human Rights.
  • The Office of Human Rights investigates the violations and imposes penalties.

As with other ban the box laws, there are exceptions. These include:

  • When federal /district laws or regulations require a criminal background check in order to be employed;
  • When the job is “designated by the employer as part of a federal or district government program or obligation that is designed to encourage the employment of those with criminal histories;” and
  • Employment at facilities or with employers that provide programs, services or direct care to minors or vulnerable adults.

As we have recommended before, this is a good time for employers to review and revise their applications if necessary. And given that questions about criminal past cannot be asked either on the application or during interview, affected employers should review their hiring practices to ensure that they comply with the new law. For additional details, we encourage you to read the Baker & Hostetler blog.

Going Back Two Years on a Background Check. Is That Enough?

Taxi driver background check

After assaults on two women earlier this month by a taxi driver in Honolulu, HI, there are new concerns about safety. At issue is background checks done on cab drivers. According to police, the current city ordinance requires that background checks only go back two years. KHON2 in Honolulu reports that several owners of cab companies recently met with members of the Honolulu City Council at a hearing committee to discuss expanding background checks to more than two years.

The length of time a background check has to go back is clearly problematic for many people. In a follow up story to the assaults, KHON2 spoke with Howard Higa, president of The Cab, a taxi company that has over 800 drivers, and asked what requirements are necessary to work as a driver for the company. He responded that they needed a taxi license, insurance and a two year background check.

But Higa added that he would like to see this changed, “In my opinion, there are certain crimes or certain things that drivers have done in the past that should never be forgiven,” Higa said, “and I believe that the background checks should go further back … They should be five, maybe even 10 years.”

Cab companies want to expand the background checks, and some city council members are listening. Calling it a public safety concern, those council members say they will look into expanding background checks. While no resolution has yet been proposed, the subject will be discussed further at the next committee meeting.

Illinois Poised to Enact “Ban the Box” Law Affecting Private Employers

Illinois background check "ban the box"

 

It is expected that Illinois Governor Pat Quinn will sign new “ban the box” legislation that will remove questions about criminal background history from employment applications. This would expand the state’s existing laws to affect private employers with 15 or more employees, and will also affect employment agencies.

 

Employers will still be able to conduct background checks, but they will be prohibited from asking about the applicant’s criminal background history until the job interview or when a conditional job offer has been made (if no interviews are conducted). If signed, the law will take effect on January 1, 2015.

 

As we have noted before, more states and communities are enacting “ban the box” legislation, and it continues to expand to include private employers. If Governor Quinn signs the bill, Illinois will become the fifth state to enact “ban the box” legislation that affects private employers.

 

 

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